1. DART INDUSTRIES INC 2. (No. Syarikat: 287324-M) 1. CMN INTERNATIONAL SDN BHD (No. Syarikat: 1181309-W) 2. NG YAN SWAN (No. KP: 740518-08-6376) 3. NURRAIDAH BINTI RAZALI (No KP: 821012-14-5038) 1. CMN INTERNATIONAL SDN. BHD (No. Syakikat:
The Court of Appeal affirmed the High Court that the Biolife Borneo Bottle infringed RID 167 as an obvious imitation (not a fraudulent imitation) after applying visual comparison and established tests; but set aside the High Court's finding that the 2nd Plaintiff lacked locus and held that an exclusive sub-licensee has standing under s.33(4) IDA (first limb) and the procedural second limb does not apply where the owner is a co-plaintiff; appeals by 1st Plaintiff and Defendants dismissed and 2nd Plaintiff's appeal allowed with costs.
- Citation
- W-02(IPCV)(W)-1810-09/2018 (Mahkamah Rayuan)
- Parties
- Appellant/respondent: CMN International Sdn Bhd; Appellant/respondent: Ng Yang Swan; Appellant/respondent: Nurraidah Binti Razali; Appellant/respondent: Azrul Bin Samat; Appellant/respondent: Tai Yang Thing; Respondent/appellant: Dart Industries Inc.; Appellant/respondent: Tupperware Brands Malaysia Sdn Bhd
- Court
- IPCV
- Jurisdiction
- Malaysia
- Judgment Date
- 3 July 2020
- Case Number
- W-02(IPCV)(W)-1810-09/2018 (Mahkamah Rayuan)
- Procedural Posture
- Civil Appeal (design Infringement) / Court of Appeal Judgment Delivered 3 July 2020
- Outcome
- Appeals dismissed in part and allowed in part: 1st Plaintiff's and Defendants' appeals dismissed; 2nd Plaintiff's appeal allowed
- Legal Topics
- Registered Design Infringement, Locus Standi of Licensee/sub Licensee, Obvious Imitation, Fraudulent Imitation, Interpretation of Statute S.33(4) IDA, Costs
- Source Language
- Malay/English
Case Brief
Summary, issues, holding and outcome
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Parties
CMN International Sdn Bhd
Appellant/respondent
Ng Yang Swan
Appellant/respondent
Nurraidah Binti Razali
Appellant/respondent
Azrul Bin Samat
Appellant/respondent
Tai Yang Thing
Appellant/respondent
Dart Industries Inc.
Respondent/appellant
Tupperware Brands Malaysia Sdn Bhd
Appellant/respondent
Procedural Posture
Civil Appeal (design Infringement) / Court of Appeal Judgment Delivered 3 July 2020
Legal Issues
- 1 Whether the 2nd Plaintiff (exclusive sub-licensee) had locus standi to sue under s.33(4) Industrial Designs Act 1996
- 2 Whether the Biolife Borneo Bottle infringed Registered Design No MY-09-00167-0101 (RID 167) as an obvious or fraudulent imitation
- 3 Proper construction and application of the two limbs of s.33(4) IDA and effect of licence/sub-licence agreements
Ratio Decidendi
The Court of Appeal affirmed the High Court that the Biolife Borneo Bottle infringed RID 167 as an obvious imitation (not a fraudulent imitation) after applying visual comparison and established tests; but set aside the High Court's finding that the 2nd Plaintiff lacked locus and held that an exclusive sub-licensee has standing under s.33(4) IDA (first limb) and the procedural second limb does not apply where the owner is a co-plaintiff; appeals by 1st Plaintiff and Defendants dismissed and 2nd Plaintiff's appeal allowed with costs.
Court Disposition
Appeals dismissed in part and allowed in part: 1st Plaintiff's and Defendants' appeals dismissed; 2nd Plaintiff's appeal allowed
Orders
- Affirmed High Court finding that the Biolife Borneo Bottle infringed RID 167 by obvious imitation and was not a fraudulent imitation
- Set aside High Court finding that 2nd Plaintiff had no locus to sue; held 2nd Plaintiff has locus as exclusive sub-licensee under s.33(4) IDA
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